The Warren Court and American Politics
by Lucas A. Powe Jr.
Harvard University Press, 600 pp., $ 35
On June 23, 1969, Earl Warren, chief justice of the United States, swore in his successor, Warren Burger, and brought to an end the most revolutionary judicial regime in American history. Since 1953, when Warren took over as chief justice, the Supreme Court had overturned forty-five precedents; prior to then, the Court had overturned a total of eighty-eight. Warren, who despised Burger and his patron, Richard Nixon, let everyone know at the swearing-in that under his leadership the Court had been a reign of enlightened oligarchs: "We serve no majority. We serve no minority. We serve only the public interest as we see it, guided only by [the] Constitution, and our consciences."
Indeed, the Warren Court saw its duty as going well beyond merely upholding the law. And its justices saw the Constitution as only a guide, and not a mandate, for their rulings, which were influenced more by their own personal sense of a transcendent social good. Unsurprisingly, the degree to which the Warren Court's rulings expressed any coherent view of law or policy is often hotly disputed. Its rulings certainly did not grow out of established legal doctrines. With the exception of Hugo Black, who was frankly a crackpot in his theorizing, there were no constitutional thinkers on the Warren Court. To be sure, William O. Douglas had a brilliant legal mind, but he used it impatiently to reach whatever result he liked. The most important doctrinalist became Warren's trusty lieutenant, William J. Brennan, yet he was really more a pragmatic strategist than a visionary. Felix Frankfurter, who retired in 1962, was the only real scholar in the bunch, yet his view of the Court's limited role -- a view grounded in history -- was an annoyance to Warren and the other liberals, and they were glad to be rid of him.
Sympathetic academics have lent retrospective rationales to the Warren Court's decisions. The canonical interpretation is that the Court was consistently trying to ensure that the political process itself was free of invidious discrimination against disfavored groups, particularly the poor and minorities. In this view, one can draw a straight line from the anti-segregation cases (Brown v. Board of Education and its progeny) to the legislative reapportionment cases (Baker v. Carr, Reynolds v. Sims), which aimed for a fair electoral process, and on to the criminal procedure cases (Gideon v. Wainwright, Escobedo v. Illinois, Miranda v. Arizona), which were meant to guarantee that society's downtrodden received the same fair treatment as the rich.
But, as Lucas A. Powe Jr. points out in The Warren Court and American Politics, this neat construction leaves out many other issues on which the Court handed down landmark decisions that don't cleanly fit the pattern, such as prayer in the schools (Engle v. Vitale), obscenity (Roth v. United States, Stanley v. Georgia), contraception (Griswold v. Connecticut), the free press (Sullivan v. New York Times), and free speech (Brandenburg v. Ohio). A professor at the University of Texas in law and government, Powe wants to revive a school of Court-watching that pays as much attention to political influences as to matters of legal doctrine. When looked at in this light, the Warren Court's decision-making appears most coherent, Powe argues, as the judicial expression of Kennedy-Johnson liberalism, with its emphasis on the positive role of the federal government in redressing social wrongs and reinventing institutions on a modern, progressive basis.
In particular, Powe argues that much of the Warren Court's direction can be understood as the effort of national-minded elites to pave the way for an emerging progressive consensus. Thus, the Court aimed to eradicate the institutionalized racism of the South and overcome the sexual "backwardness" of Catholics. Cases like Griswold, forbidding government interference with access to contraceptives, Roth, barring censorship of sexually explicit artistic works, Stanley, protecting private ownership of obscene materials, and Engle, banning official prayer in public schools, all follow from an anti-Victorian -- and anti-Catholic and anti-evangelical -- crusade for modernism.
Warren and his liberal cohorts, Powe points out, had supreme confidence in their own forward-looking judgments, which, they thought, even the benighted would understand and value once freed of their provincial blinders. And about a number of things, these justices were right, as certain results enjoyed or earned a consensus among most Americans: Separate was decidedly never equal; state legislatures should reflect proportionate representation; you can't have a fair trial without a lawyer. But opinions from the Warren Court were often so poorly or cavalierly drafted as to seem arbitrary.
Even more disturbing, the Court under Warren played politics with its own decisions. Nowhere was this more apparent, as Powe observes, than in the area of remedies for violations of constitutional rights. The established rule was that there could be no delay in affording redress. Yet in Brown II, the Court offered the black population of the South only the oxymoron "all deliberate speed" to accomplish integration. Despite his rejection of Frankfurter's gradualism, Warren felt that forced desegregation would be a disaster, leading to open defiance that would cripple the prestige of the Court. So, too, right after Brown, the Court took a pass on striking down anti-miscegenation laws -- expressly premised on racist doctrines about mongrelization -- lest the fragile fabric of Brown be torn asunder by bitter southern reaction.
The Warren Court proved itself cynical and inconsistent when it came to criminal procedure, too. It boldly trashed the established police methods of all states in Escobedo and Miranda, and then expanded wildly the rights of habeas corpus -- ensuring federal review of any criminal charge that could be looked at under a constitutional provision, even if state courts had already reviewed these claims. But, rather than set murderers and rapists free, the Court refused to apply retroactive effect to its rulings -- thus depriving scores of defendants of the rights that had just been vindicated. The more conservative justices went along because they hoped to limit the ill effects of the liberal majority's bad rulings, but the outcome was unprincipled just the same.
The Framers of the Constitution gave federal judges life tenure so that they could be independent. Until John Marshall in Marbury v. Madison arrogated to the Supreme Court the exclusive province of interpreting the Constitution, probably none of the Framers realized what power this independence would entail. Still, no Court would bring this lesson home the way the Warren Court did. Striving to give the country the benefits of their superior wisdom -- and, yes, hoping to serve the less advantaged as well -- Warren and his brethren relished their imperial isolation as proof of disinterested purity. We can be grateful to Professor Powe -- himself sympathetic to many of the outcomes of the Warren Court -- for offering a more skeptical view of a judicial reign beset by colossal arrogance.
Daniel J. Silver is an attorney and writer in Washington, D.C.